A. A public utility may invest in, construct, acquire or operate a generating plant that is not intended to provide retail electric service to New Mexico customers, the cost of which is not included in retail rates and which business activities shall not be subject to regulation by the commission pursuant to the Public Utility Act [Chapter 62, Articles 1 to 6 and 8 to 13 NMSA 1978], except as provided by Section 62-9-3 N.M. Stat. Ann.. This section shall not diminish a public utility’s obligation, by the prudent acquisition of resources, to serve its retail load at a cost of service no higher than the average book cost plus fuel, other operating and maintenance costs and the utility’s authorized rate of return on investment of the utility’s unregulated generation constructed or acquired after January 1, 2001; provided that this provision does not apply to a public utility that does not acquire unregulated generation after January 1, 2001. The commission shall assure that the regulated business is appropriately credited for any off-system sales made from regulated assets.

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B. This section shall apply only to a public utility that began investing in, constructing or acquiring generating plant pursuant to this section before July 1, 2004. This section shall continue to apply until the latest of:

(1)     January 1, 2015;

(2)     the date the public utility divests its interest in [a] generating plant acquired or constructed pursuant to the provisions of this section; or

(3)     the date the plant receives a certificate of convenience and necessity in accordance with Section 62-9-1 N.M. Stat. Ann..